United States District Court, District of Columbia
BERMAN JACKSON District Judge.
Worldnetdaily.com, Inc. brought this action against
defendant, the United States Department of Justice, under the
Freedom of Information Act (FOIA), 5 U.S.C. § 552,
seeking all the "materials used in the investigation by
the Washington, D.C. Metropolitan Police Department, and
reviewed by the U.S. Attorney's Office for the District
of Columbia, into the October 3, 2013 fatal shooting of
Miriam Carey by uniformed agents of the U.S. Secret Service
and officers of the U.S. Capitol Police Department, "
along with "the final report and findings of that
investigation." Compl. [Dkt. # 1] ¶5. After
conducting a search and locating responsive records,
defendant produced a number of records to plaintiff, some of
which were produced in redacted form. Def.'s Mot. for
Summ. J. [Dkt. # 18] ("Def.'s Mot."); Mem. in
Supp. of Def.'s Mot. [Dkt. # 18-2] ("Def.'s
Mem.") at 1. Defendant also withheld several documents
in full, and it now moves for summary judgment. Def.'s
Mot-Def.'s Mem. at 1.
FOIA case, the district court reviews the agency's action
de novo and "the burden is on the agency to sustain its
action." 5 U.S.C. § 552(a)(4)(B); accord
Military Audit Project v. Casey 656 F.2d 724, 738 (D.C.
Cir. 1981). "FOIA cases are typically and appropriately
decided on motions for summary judgment." Moore v.
Bush, 601 F.Supp.2d 6, 12 (D.D.C. 2009). On a motion for
summary judgment, a court "must view the evidence in the
light most favorable to the nonmoving party, draw all
reasonable inferences in his favor, and eschew making
credibility determinations or weighing the evidence."
Montgomery v. Chao, 546 F.3d 703, 706 (D.C. Cir.
2008); see also Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1986). But where a plaintiff has not
provided evidence that an agency acted in bad faith, "a
court may award summary judgment solely on the basis of
information provided by the agency in declarations."
Moore, 601 F.Supp.2d at 12.
produced a number of records to plaintiff, but it withheld
the following documents in full:
[A] 96-page Memorandum written by the investigative Assistant
United States Attorneys to their superiors recommending
against prosecution (the "[D]eclination Memo" or
the "Memo"), 30 videos and audios of interviews of
civilian and law enforcement witnesses, and 27 high
resolution aerial photos of the White House complex taken
from a restricted airspace.
Def's Mem. at 1. In its opposition to defendant's
motion for summary judgment, plaintiff states that it is
"satisfied with  [defendant's efforts to identify
responsive records and does not challenge the adequacy of its
search for requested records." Pl.'s Mem. of Law in
Opp. to Def's Mot. [Dkt. # 19] ("Pl.'s
Opp.") at 1. Plaintiff also represents that it does not
challenge the withholding of the 27 aerial photographs or the
30 video and audio records as exempt from FOIA. Id.
the only issue before the Court is whether defendant properly
withheld the Declination Memo as subject to "the
attorney work-product and deliberative process privileges
include[ed] in FOIA's Exemption (b)(5)." Def's
Mem. at 1. Defendant explains that it withheld that document
because it is "an intra-agency communication created as
part of the decision-making process regarding whether or not
to prosecute the federal officers" involved in the Carey
shooting, which "describes the federal prosecutors'
views of the criminal investigation and contains their legal
reasoning, analysis of the evidence, and their
recommendations to their superiors not to pursue
charges." Id. Plaintiff maintains that the
Declination Memo "is not a pre-decisional document or
deliberative communication, " but "[r]ather, it is
the final determination to decline prosecution and is not
exempt from disclosure under FOIA." Pl.'s Opp. at 2.
assist it in resolving the issue of whether the document in
question is subject to the deliberative process privilege,
the Court ordered defendant to produce the Declination Memo
to the Court for in camera review. Min. Order (Sept.
14, 2016). Upon review of the document, the Court concludes
that it is unambiguously predecisional and deliberative in
nature. Therefore, it is protected by the deliberative
process privilege, and defendant's motion for summary
judgment will be granted.
deliberative process privilege protects from disclosure
"inter-agency or intra-agency memorandums or letters
that would not be available by law to a party other than an
agency in litigation with the agency." 5 U.S.C. §
552(b)(5). The privilege "rests on the obvious
realization that officials will not communicate candidly
among themselves if each remark is a potential item of
discovery, " and its purpose "is to enhance
'the quality of agency decisions' by protecting open
and frank discussion among those who make them within the
[government." U.S. Dept of Interior v. Klamath Water
Users Protective Ass'n 532 U.S. 1, 8-9 (2001),
quoting NLRB v. Sears, Roebuck & Co., 421 U.S.
132, 151 (1975). Thus, the privilege only "protects
agency documents that are both predecisional and
deliberative." Judicial Watch, Inc. v. FDA, 449
F.3d 141, 151 (D.C. Cir. 2006); accord McKinley v. Bd. of
Governors of Fed. Reserve Sys., 647 F.3d 331, 339 (D.C.
Cir. 2011). "[A] document [is] predecisional if 'it
was generated before the adoption of an agency policy'
and deliberative if 'it reflects the give-and-take of the
consultative process.'" Judicial Watch, 449
F.3d at 151, quoting Coastal States Gas Corp. v. U.S.
Dep't of Energy, 617 F.2d 854, 866 (D.C.Cir. 1980).
consideration of the parties' pleadings and the
Declination Memo itself, the Court finds that the document
was properly withheld as subject to the deliberative process
privilegeThe Court's in camera review
of the Declination Memo confirmed that it satisfies both
prongs of the deliberative process privilege because it is
both predecisional and deliberative. The memorandum conveys
the recommendation of two Assistant United States Attorneys
("AUSAs") to their supervisors within the U.S.
Attorney's Office that the U.S. Attorney for the District
of Columbia should decline to prosecute the officers involved
in the Carey shooting, and it lays out the evidence and
analysis upon which that recommendation is based. Such
documents have routinely been found to be exempt from
disclosure under FOIA. See, e.g., Paisley v. CIA,
712 F.2d 686, 699 (D.C. Cir. 1983) (observing that "the
information-gathering and deliberative process that
produces" "a decision as to whether or not to
prosecute someone" "is precisely the type of
material to be protected as pre-decisional under Exemption
5"), opinion vacated in part on other grounds, 724 F.2d
201 (D.C. Cir. 1984); Heggestad v. U.S. Dep't of
Justice, 182 F.Supp.2d 1, 10 (D.D.C. 2000) ("[A]ll
documents prepared by the agency with regard to this
prosecution prior to the final decision ... to authorize the
prosecution . . . would be considered predecisional and
allowing release of these memoranda would violate the intent
of the deliberative process privilege").
insists that the Declination Memo is itself a final decision,
and is not predecisional, because it "was written by the
AUSAs who were investigating the shooting and made the
determination to decline to prosecute." Pl.'s Opp.
at 8. But the Court's review of the document reveals that
plaintiff is incorrect: the Declination Memo does not reflect
a determination to decline to prosecute, but a
recommendation that the United States Attorney
decline to do so, along with the evidence and analysis
supporting that recommendation. In other words, the
Declination Memo does not, as plaintiff insists,
"embod[y] the final decision to decline to prosecute,
" id at 7-8, nor does it "follow the
decision, " id at 8. Rather, it contains the
recommendation of the investigating AUSAs as to what final
decision should be reached by their supervisors in the
future. The recipients of the Declination Memo could have
agreed, disagreed, or called for further investigation or
factual record also demonstrates why plaintiffs position -
that "[t]he Declination Memo here follows the decision
and is simply the communication designed to explain it,
" id - is incorrect. The Declination Memo was
written on May 22, 2014, and it was not until July 10, 2014,
nearly two months later, that the United States Attorney
issued a letter formally declining to prosecute the officers.
See Def's Mem. at 13; see also Ex. 1 to
Def's Reply Mem. in Supp. of Def's Mot. [Dkt. # 20-1]
(Def's Reply) (July 10, 2014 letter from Ronald C. Machen
Jr., United States Attorney, to Assistant Director of the
Secret Service and United States Capitol Police Chief
reflecting decision "to decline criminal prosecution of
the officers involved" in the Carey shooting). So, the
Declination Memo is plainly predecisional because it preceded
the final decision in the Carey matter.
also insists that "disclosure of the Declination Memo
would not defeat any candor in future decision making
processes" because plaintiff is not seeking "back
and forth communications between the AUS As and the task
force that may encompass such candor and frank discussions of
reasons and rationales" for proceeding or declining to
prosecute. Pl.'s Opp. at 10. But that is precisely what
the Declination Memo contains: the investigating AUSAs'
frank assessment of the witnesses, the physical evidence, and
the applicable law, as well as their ultimate recommendation
as to the appropriate course of action. Disclosure of that
analysis could "actually inhibit candor in the
decision-making process if made available to the
public." Army Times Pub. Co. v. Dep't of the Air
Force, 998 F.2d 1067, 1072 (D.C. Cir. 1993).
plaintiff complains that defendant has «ma[de] no
attempt to identify or segregate any factual or non-exempt
portions of the document." Pl.'s Opp. at 6. But the
Court's review of the Declination Memo has persuaded it
that no portion ...